The EPA's Clean Power Plan Just Won Another Legal Battle

Judges rejected a stay against the plan while the appeals court decides its fate.

Foes of the U.S. EPA’s plan to regulate carbon emissions from power plants didn’t get the initial victory they’d hoped for.

The D.C. Circuit Court of Appeals rejected a motion for a stay pending court review of the Clean Power Plan on Thursday. This means the CPP will remain in effect while the lawsuit against it proceeds. A coalition of 27 states and scores of companies and industry groups had hoped the stay would block implementation until the court rules on the plan later this year. Opponents of the plan had already been rebuffed in legal challenges at earlier stages of the plan’s development.

“There was a lot of concern on the respondents’ side and among people who care about climate change that if a stay were to be granted, that would really shift momentum against the development of the plans and following through on the Clean Power Plan,” says Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law. Burger, who is filing an amicus brief in support of the CPP on behalf of the National League of Cities, says now “it’s full steam ahead” for the plan.

The CPP isn’t out of the woods yet. Oral arguments will begin on June 2. The petitioners, who don’t want to have to radically switch their energy sources away from coal towards clean sources, are challenging the EPA’s authority to alter the country’s energy choices. The EPA is claiming jurisdiction under the Clean Air Act to regulate greenhouse gases as pollutants.

With the stay denied, states must proceed toward the September 6 deadline for submitting their own plans to cut carbon from their power sector. If they can’t meet that, they can file for an extension. And if a state never submits a plan, the federal government will issue one for the state to follow. With the deadline now intact, states must either begin their planning or risk getting caught flat-footed should the court uphold the CPP in the end.